Friday, September 28, 2007

Definition of residence key to avoiding fees

Narrow legal analysis may be a more effective way to attack Virginia’s civil remedial fees than broad constitutional and public policy arguments.

That could be a lesson from the case of Rajesh Cherkukuri, an Indian national who was convicted earlier this month of drunken driving in Prince William County.

Cherukuri has a Virginia driver’s license and has lived in the state for about a year. Prosecutors insisted that those circumstance made him a Virginia resident and subject for payment of $2,250 in civil fees over 26 months. The exclusion of nonresidents from liability for the fees has been the major argument opponents of the law have raised in saying that it violates the equal protection clauses of the state and federal constitutions.

Not so fast, Cherukuri’s attorney, Lou Brooks of Manassas, countered. The definition of resident in Code § 46.1-206.1 is ambiguous enough that interpretation of the term requires a look at the use of the word in other sections of Title 46.2, Brooks insisted.

General District Judge Craig D. Johnston agreed. A key concept of residence is domicile, which generally requires “the intention to remain [in a place] for an indefinite period of time.” Cherukuri doesn’t fit that definition because he is in this country on a temporary student visa and intends to return to India, Johnston wrote on Sept. 25 in Commonwealth v. Cherukuri (VLW 007-12-03).

“I conclude that the statutory exemption of nonresident students from those persons who are deemed residents for purposes of Title 46.2, including impositions of the civil remedial fee, was a deliberate exemption,” Johnston said in refusing to impose the fees on Cherukuri.